SNS Petro Pty Ltd v Goel (No 2)

File Number(s): 2019/72345

Publication restriction: Nil

JUDGMENT

Summary

1. The Court delivered its principal judgment in these proceedings on 10 June 2025: SNS Petro Pty Ltd v Goel [2025] NSWSC 798. These reasons should be read, and assume familiarity, with the judgment. Defined terms in the judgment have the same meaning in these reasons.

2. For the reasons which follow, the Court will make orders against SNS Petro and Mr Saigal (the respondents) that they pay Mr Goel’s costs of the proceedings, in part on the indemnity basis, and assessed as a gross sum.

3. This application has been decided on the papers. Mr Goel’s written submissions were prepared by his solicitors. The respondents informed my chambers by email on 24 September 2025 that they would not be providing any response.

Procedural history

4. The dismissal of the respondents’ claim against Mr Goel is fully set out in the judgment. It is unnecessary to traverse that history again in these reasons.

5. Consequent on the judgment, the Court made orders in favour of Mr Goel on his cross-claim against Mr Saigal in the sum of $248,113.61, together with pre- judgment interest in the sum of $87,456.32. The Court indicated that costs should follow the event but made directions for submissions and evidence to be filed in relation to any special costs application.

6. To give effect to his application, Mr Goel filed a notice of motion on 4 August 2025 seeking relief which included:

“The First and Second Respondents

1 Order that the First and Second Respondents pay the Applicant's costs of the substantive claim and cross-claim:

a. up to and including 14 September 2023, on the ordinary basis;

b. thereafter, on the indemnity basis.

2 In the alternative to order 1, and order that the First and Second Respondents pay the Applicant's costs of the substantive claim and cross-claim:

a. up to and including 8 February 2024, on the ordinary basis;

b. thereafter, on the indemnity basis.

3 In the alternative to orders 1 and 2, order that the First and Second Respondents pay the Applicant's costs of the substantive claim and cross-claim on the ordinary basis.

4 Order pursuant to s98(4)(c) of the Civil Procedure Act 2005 (NSW) (CPA) that the First and Second Respondents pay the Applicant's costs of the substantive claim and cross-claim:

a. in the event the Court makes order 1 above, in the sum of $199,803.45; or

b. in the event the Court makes order 2 above, in the sum of $198,365.78; or

c. in the event the Corut makes order 3 above, in the sum of $181,660.15.

Costs Against Vaikom Law

5 An order pursuant to s99(2)(c) and s99(4)(c) of the CPA that the third and Fourth Respondents pay 50 per cent of the Applicant's costs of the substantive claim and cross-claim incurred between 11 April 2024 and 27 May 2025 on the indemnity basis, fixed in the sum of $23,145.07.”

7. Mr Goel’s claim against Viakom Law was settled by the relevant parties agreeing to these consent orders (which will be made with the orders giving effect to these reasons):

“The Court orders that:

1 The notice of motion filed by the plaintiff on 4 August 2025 (Motion) be dismissed as against the third and fourth respondents to the Motion only.

2 The plaintiff, the third respondent and the fourth respondent to the Motion pay their own costs of the Motion.

The Court notes that:

3 The plaintiff on the one hand, and the third and fourth respondents to the Motion on the other hand, have entered into a deed of settlement and release to resolve the Motion as between them only, on the basis that the third and fourth respondents pay the plaintiff the sum of $20,000.00 in full and final settlement of the relief sought by the plaintiff in prayer 5 of the Motion and in prayer 6 of the Motion (as against the third and fourth respondents to the Motion only).

4 The Motion remains on foot as against the first and second respondents to the Motion.”

8. It follows that all that remains for determination is Mr Goel’s costs claim against the respondents. In response to an enquiry made by my associate, Mr Saigal by email of 24 September 2025 indicated “I am self-represented and don’t have lawyer. I do not intend to put on any further evidence.” Neither submissions nor evidence have been filed on behalf of the respondents notwithstanding the Court’s directions for that to occur. In those circumstances, the Court indicated to the parties that it would proceed to determine the motion on the papers, being the material filed and served on behalf of Mr Goel in support of the motion: an outline of submissions and the affidavit of Mr Goel’s solicitor, Mr de la Hoyde sworn on 1 August 2025. The facts upon which the Court has relied in these reasons are all drawn from that affidavit.

Indemnity costs

9. Mr Goel’s primary submission was that the Court should make an indemnity costs order from the day after the expiry of a Calderbank offer sent on 31 August 2023. The terms of the offer were:

“15. With all of that being said we are instructed to make the following settlement offer, strictly on a without prejudice and without admissions basis:

(a) Our client to pay Mr Saigal and SNS the sum of $30,000 in full and final settlement of the Proceedings;

(b) Ownership of Jaguar XE sedan bearing registration number XXXXXX, (including any insurances policies) to be transferred from SNS to our client;

(c) The Proceedings (including our client's cross-claim) to be dismissed with each party to bear their own costs of the Proceedings;

(d) The parties mutually release each other from all claims of and incidental to the subject nature of the Proceedings; and

(e) The parties are to enter into a deed of settlement and release to document the terms of the Offer.

16. The above offer is made in accordance with the principals espoused in the Calderbank v Calderbank [1975] ALL ER 333 and is open for acceptance until 5pm on 14 September 2023.

17. For inter alia, the reasons set out above, the offer constitutes a significant compromise of our client's position in circumstances where:

(a) it involves a release of our client's cross-claim;

(b) our client remains confident that it will obtain a more favourable result at the final hearing of the Proceedings; and

(c) it involves a waiver of our client's legal costs to date.”

10. I accept Mr Goel’s submission that the respondents’ refusal to accept the offer was unreasonable because:

11. The offer was made at a time when all the evidence had been served and the issues between the parties were well known to each of them;

12. The offer was open for a reasonable period;

13. The amount in the offer was a real compromise on the part of Mr Goel; and

14. Mr Goel has achieved a much better result in the proceedings than would have been the outcome if the offer had been accepted. This conclusion applies taking into account reference to the Jaguar motor vehicle, in respect of which Mr Goel was being sued in the amount of $81,578.17.

15. The Court will accordingly make an order in terms of paragraph 1 of the motion.

Gross sum costs assessment

12. The Court also accepts that this is an appropriate case for the making of a gross sum costs order for these reasons:

13. It is unlikely that the respondents will be able to meet the liability for costs. So much is apparent from their inability to provide security for costs as set out in the judgment, and Mr Saigal’s evidence in cross- examination which suggests that neither he nor SNS Petro has substantial means. Furthermore, the evidence is that Mr Saigal owns no real property in NSW or Queensland (despite his evidence that he “had a service station business in Harvey Bay, Queensland” and a “vacant property in Thrumster near Port Macquarie”). Furthermore, SNS Petro has a paid up issued share capital of $100;

14. The proceedings have been on foot since 2019. It would be inconsistent with the overriding purpose to commit the parties to another protracted and expensive process in a formal costs assessment; and

15. The material in Mr de la Hoyde’s affidavit gives the Court confidence that it is able to reach a fair assessment of the costs. The Court accepts that the work done and the rates charged were reasonable.

16. Mr Goel’s total solicitor/client costs in the proceedings were $277,034.34, comprising $199,836.60 in professional fees and $77,197.74 in disbursements. Of those, $130,749.30 in professional fees and $33,929.37 in disbursements were incurred up to and including 14 September 2023.

17. I accept the submission put on behalf of Mr Goel that in respect of costs on the ordinary basis, an allowance of 60% recovery for professional fees and 80% recovery for disbursements is appropriate. In respect of costs on the indemnity basis, I accept as being appropriate an allowance of 80% recovery from professional fees and 90% for disbursements. In both cases, these allowances are at the conservative end of the spectrum.

18. On the basis of the allowances referred to in the preceding paragraph, Mr Goel’s entitlement to costs on the basis of the special costs order which the Court will make (see [11] above) would be $199,804.45. However, it is not uncommon in applications for gross sum costs orders for the Court to make a further discount to reflect the broad brush approach which such an order necessitates. That additional discount is said to reflect an additional measure of fairness insofar as the cost respondents do not have the opportunity of a detailed challenge to the costs claimed, and the party claiming the costs has the benefit of a much earlier entitlement rather than having to wait for the conclusion of a costs assessment.

19. Given what I have already observed is the conservative nature of the claim made on behalf of Mr Goel, I do not propose to make an additional discount as such. However, at least some of the costs reflected in the figure set out in the preceding paragraph are included in the costs which are the subject of the settlement of the claim for personal costs against Vaikom Law and its principal Mr Rajeev (see [7] above). For that reason, and to avoid double recovery, I will reduce the amount to which Mr Goel might otherwise have been entitled by the amount of that settlement of $20,000. There will therefore be a gross sum costs order in favour of Mr Goel against the respondents for $179,804.45.

Conclusion

17. In addition to the orders to give effect to the settlement with Viakom Legal and Mr Rajeev (see [7] above), the Court makes these orders:

18. Order that SNS Petro Pty Ltd ACN 609 879 870 and Shobhit Saigal pay Gaurav Goel’s costs of the substantive claim and cross-claim:

(a) Up to and including 14 September 2023, on the ordinary basis; and (b) Thereafter, on the indemnity basis.

2. Order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) that the costs referred to in order (1) are payable in the specified gross sum of $179,803.45 instead of assessed costs.

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